FCA COVID-19 business interruption test case verdict revealed

The High Court in England and Wales has today handed down its judgment in the Financial Conduct Authority’s (FCA) business interruption insurance test case The Financial Conduct Authority v Arch & Ors. The FCA has won what is being described as a ‘significant victory’ on behalf of holders of business interruption insurance.

Irish Insurers and Consumers eye UK Covid-19 Business Interruption Test

The Business Interruption underwriters working from the discomfort of their homes have been pouring over their previous craftmanship more than most in the industry in recent weeks. Not without good reason. The stakes are high. The future of their business may well come down to some perceived uncertainty in the small print. If ever the idiom the devil is in the details were true its now.

High Court Average Personal Injury Awards Drop by 29% in 2018

The number of personal injury cases taken in the State was down slightly last year while the average award made at High Court level dropped by 29 per cent, according to figures in the latest annual report from the Courts Service.

The figures appear to conflict with the view that increasing litigation and award levels are behind the rise in public liability and other insurance premium levels.

High Court Awards Garda €5,000 for Hand Injury Sustained in the Course of Duty.

This case concerned a claim by the applicant, Garda Kampff, for compensation in respect of a soft tissue injury to his hand. Counsel for the applicant relied on the Book of Quantum to urge the Court to an award of circa €21,700. Despite the Book of Quantum expressly providing that minor injuries to a hand have led to awards of up to €21,700, the High Court ruled that the award of anything even close to this magnitude could not be justified for what was, in essence “bruising to the hand” and awarded the applicant €5,000. This amount is a fraction of the maximum damages of €15,000 that can be awarded in the District Court. Yet this matter had to be heard in the High Court under the Garda Compensation Act as currently drafted. Since this case is a common example of the type of case that is heard in the High Court under the Garda Compensation Acts on a weekly basis, it highlights, in this Court’s view, the need for a reform of this area. It is clear from the judgment of Barton J. in Murphy v. Minister for Public Expenditure and Reform [2015] IEHC 868 that in dealing with compensation claims under the Garda Compensation Acts that the High Court is not obliged to have regard to the Book of Quantum: “For the sake of completeness, it is considered appropriate to refer to the provisions of s. 22 of the Civil Liability in Courts Act 2004 (the Act of 2004) which imposes on the Court a requirement, when assessing damages in a personal injuries action, to have regard...

Second and Final Personal Injuries Commission Report Published.

July 2018 saw the publication of the second and final report of the Personal Injuries Commission. The Personal Injuries Commission was established in January 2017 to undertake extensive research into the cost of insurance and personal injury claims in Ireland. We consider the commentary of Nicholas Kearns and the ‘compo culture’ in Ireland

Darragh, Kevin and Ivan Hunter, Aaron Keely and ors v Feeney, Gareth and Ryan’s Investments (N.I.) Ltd, trading as Hertz Rent a Car.

The article illustrates the difficulties arising from pursuing an order under Section 26 of Civil Liability and Courts Act 2004. Outlined below is a recent High Court highlighting the difficulty insurers have on pursuing a case dismissal under Section 26.   Section 26 states that “if a plaintiff claiming injury does not tell the truth on affidavit or does not tell the truth in Court, then the Court has discretion to either dismiss the claim in its entirety or penalise the plaintiff in respect of any damages made. Even on the occasion where a plaintiff has done so unwittingly or even innocently. Where a Court is satisfied that the requirements of Section 26 have been met, then the provisions of Section 26 are binding.   Buncrana Circuit Court awarded seven plaintiff’s damages between €5,050 and €9,550 as a result of a collision on 28 June 2011 involving two cars on a roundabout in Lifford, County Donegal.   The plaintiff’s each claimed for soft tissue injury. Firstly, against the driver of the vehicle responsible for the accident and secondly, against Ryan’s Investments NI Ltd trading as Hertz Rent-A-Car whom the negligent driver’s car was hired.   Ryan’s investments insurers appealed the award made by the Circuit Court branding the accident as a “fraud.” They claimed those involved knew each other via membership of Republican commemoration groups and that the accident had been fabricated with the sole purpose of extracting the maximum compensation from the driver’s insurance company.   Mr. Justice Charles Meenan, who delivered the High Court judgement in July rejected this claim. He maintained the most that was admitted...

Platt v OBH Luxury Accommodation Limited & Anor [2017] IECA 221

The recent Court of Appeal judgment of Platt v OBH Luxury Accommodation Limited & Anor [2017 IECA 221] concerned an exaggerated claim and the Plaintiff was found to have lied. Case Overview: Mr Jason Platt, (known as the plaintiff) had travelled to Kinsale for a Valentine’s weekend break and he and his partner were staying at the Old Bank House, Pearse St, Kinsale where he claims the accident took place on February 15, 2009. The plaintiff alleged he fell from a windowsill in a room in the defendant’s hotel. As a result, his ribs, spine and hip were severely damaged. Mr Platt had sued OBH Luxury Accommodation Ltd with offices at Pearse St, Kinsale and company director Ciaran Fitzgerald. Nevertheless, the hotel owners contended that Mr Platt threw himself from the window of his guestroom following a heated argument with fiancée. Mr Platt sought compensation for his injuries and was presented through his testimonies as a poor man suffering chronic pain and discomfort. The plaintiff had also submitted under oath, an affidavit verifying a schedule of special damages and future loss claiming almost £1.5 million. It became apparent that he was found to have intentionally deceived the court and overstated the level of his agony and the degree of his incapacitation. High Court: Regardless of finding the Defendants 60% responsible, Barton J. discharged the Plaintiff’s claim after video evidence submerged of him going shopping, driving, carrying bags, and walking unassisted. (a clear disparity to the testimony from the Plaintiff who emphasized how extremely incapacitated he was as the Plaintiff had previously specified that he was now duty bound to...

Judge finds in favour of defendant in road traffic collision case due to plaintiff’s own negligence.

Mr. Justice Barr delivered his judgement on the 31st day of May 2017 in the matter of Duffy v Lyons.  The action involving a road traffic accident which took place on 8th September 2014 at the junction of Crumlin Road and Rafters Road, Dublin 12. This High Court case centred around liability and contributory negligence. The plaintiff stated that he was in the process of making a right-hand turn on his bicycle, he was collided into by the defendant’s car, which was proceeding along Crumlin Road coming in the opposite direction. The plaintiff’s case was, had the defendant been driving with reasonable care, he ought to have seen the plaintiff’s bicycle on the junction and should have avoided the collision. The defendant (Mr Lyons) case was that the plaintiff emerged suddenly onto his side of the road, from between a line of traffic that was backed up on the opposite side of the road and that he had no chance to avoid the collision. Mr Justice Barr favoured the evidence given by the defendant because the plaintiff had contributed to his own misfortune. The judge explained, the accident was predominantly caused by the negligence on the part of the plaintiff in failing to yield right of way to the defendant’s vehicle and in failing to keep a proper lookout to his left before crossing onto the far carriageway on Crumlin Road. The judge found that Mr Duffy was clearly negligent in relation to his own safety in failing to wear a helmet. While the failure to wear a helmet had no causative effect in relation to causation of the...

Insurance (Amendment) Bill 2017

The Irish government has agreed upon the outline of the insurance amendment bill 2017. Minister for Finance, Mr Paschal Donohoe outlined yesterday “The failure of Setanta and the ambiguity that followed over the compensation arrangements for claimants emphasised weaknesses with the current insurance compensation framework.” The new legislation will implement the recommendations of the report written by the Framework for Motor Insurance Compensation, therefore greater certainty for both consumers and industry will be provided, concerning the insurance compensation framework in Ireland. As well as seeking clarity on the insurance compensation framework in Ireland, the Bills key objective, when enacted, will be to increase the level of cover to clients of insolvent insurance companies to 100 per cent instead of the existing level, currently at 65 per cent. This will bring it into line with the compensation levels paid out by the Motor Insurer’s Bureau of Ireland (MIBI). In addition, this increase will be backed by the insurance industry with safety measures implemented to protect the industry in the unfortunate event a motor insurer finds itself in liquidation. A legal basis will also be delivered for motor insurers functioning in the Irish market to contribute an amount equal to 2% of gross written motor premiums to an ex-ante fund which will be held by MIBI enabling the industry to meet its 35% commitment. The Central Bank of Ireland and the State Claims Agency will now have an official role regarding administering the funds if any insurance company finds itself in financial difficulty. A time limit for making applications to the High Court for payments from the ICF will also be...

Northern Ireland High Court Judge Contemplates Alternative Investment Of Minor Settlement Monies

Mr Justice Stephens recently pondered alternatives to the customary investment of Minor damages in a Minor personal injury case brought by this firm, Lacey Solicitors.   It is understood that this is the first time the Court has considered an alternative to the conventional mechanism in place whereby compensation is paid to the Accountant General and managed by the Court Funds Office.   Mr Justice Stephens was minded, if possible, to invest the sum approved into a Child Specific ISA or some other similar type product that would provide maximum security and interest for the Minor’s damages until reaching the age of majority. The Minor’s legal representatives were asked to assist the Court in assessing whether such a step would be permissible under the current Statutory arrangements and Court powers. Having considered the relevant legislation and the Court of Appeal decision and Judgement of McCloskey J, the Judge at first instance in the case of The Northern Ireland Courts and Tribunals Service –v- The Official Solicitor to the Court of Judicature in Northern Ireland, it would appear that the Court has the power to direct that the monies are invested as they see fit. In this particular case, on balance, taking in to account the circumstances of this particular Minor Plaintiff, it was found that there would be no benefit in diverging from the Court Funds investment route.  As this would appear to be the first time the Court considered alternative routes, some guidance for practitioners will be set out in a publication which will be available on the NI Courts Service website in due course. Jenna...

Court of Appeal raises award were plaintiff suffered horrific injury

   . After four recent Court of Appeal decisions on the assessment of damages in personal injuries cases where the court on each occasion lowered awards of damages, one might be tempted to think that the court had indeed recalibrated damages in personal injury cases in Ireland. In Shannon and Shannon v O’Sullivan, the court was asked to accept that it had. In the judgment delivered by Ms Justice Irvine the court did not accept that it had that saying that the decisions had clarified “the principles to be applied and the proper approach to be taken by a trial judge when making an award for damages for personal injuries so as to ensure that the award made is just, equitable and proportionate”.   If proof was at all needed that there had not been a wholesale recalibration, the case of Murphy -v- County Galway Motor Club Limited & Ors, illustrates that the court is not afraid to raise an award of damages where it deems it appropriate.   Damages Lowered   The Court of Appeal in Nolan v Wirenski  reduced a general damages award of €120,000 made by Mr Justice Barr for the plaintiff’s shoulder injury. The award by the trial judge was for €90,000 damages for pain and suffering to the date of trial and €30,000 for pain and suffering in future. The Court of Appeal consisting of Judges Ryan, Irvine and Peart reduced the award for general damages to €65,000 consisting of €50,000 for pain and suffering to date of trial and €15,000 for pain and suffering in the future.       Ms Justice Irvine...

The Court of Appeal denies that its’ recent decisions have recalibrated damages in Personal Injury Actions.

Awards of appeal costs have been made against plaintiff’s whose damages awarded by the High Court were reduced by the Court of Appeal.   Appeal In Anthony and Rita Shannon v Debbie O’Sullivan the Court of Appeal significantly reduced High Court damages awards. The Appeal Court accepted that the Plaintiff’s were entitled to the costs of the High Court proceedings. Costs There was contention regarding the costs of Appeal. During the Appeal the defendant had made Calderbank offers which were not accepted and which were remarkably close to the awards given by the Court of Appeal, each being just above the amount awarded. Defendant case The Defendant contended that as per Ord. 99 r. 1(4) of the Rules of the Superior Courts, costs should follow the event. That being so, it was contended that the defendant’s costs of both appeals should be set off against the orders for costs made in favour of the plaintiffs in the High Court. In addition, Mr. Fox S.C., on the defendant’s behalf relied upon the two letters of offer  in support of his application. These, he submitted, may be taken into account by the court under the provisions of Ord. 99 r. 1A (b) when considering the costs of the appeal. Plaintiff’s case Mr Treacy S.C., for the Plaintiff’s asked the court to note that the Calderbank offers represented 55% of the award made to Rita Shannon and 40% of that made to Anthony Shannon and that the Calderbank offers were less than the amounts which the defendant was required to pay to the plaintiffs as a condition of the stay granted by the trial judge, i.e. €80,000 in the...

Security for costs in Ireland

The issue of when a security of costs application should be granted was considered by Mr Justice Barrett in the recent case of Euro Safety and Training Services Limited v FAS [2016] IEHC 161. Section 390 of the Companies Act 1963 provides:- “Where a limited company is plaintiff in any action or other legal proceeding, any judge having jurisdiction in the matter, may, if it appears by credible testimony that there is reason to believe that the company will be unable to pay the costs of the defendant if successful in his defence, require sufficient security to be given for those costs and may stay all proceedings until the security is given.” Section 390 was repealed on 1st June, 2015, through a combination of s.4 and Sch.2, Pt.1 of the Act of 2014, and reg. 3 of the Companies Act 2014 (Commencement) Order 2015. Section 52 of the Act of 2014, the replacement provision for s.390, now provides as follows:“Where a company is plaintiff in any action or other legal proceeding, any judge having jurisdiction in the matter, may, if it appears by credible testimony that there is reason to believe that the company will be unable to pay the costs of the defendant if successful in his or her defence, require security to be given for those costs and may stay all proceedings until the security is given.” Below is an excellent summary of the applicable law given by Mr Justice Barrett. He  references the Connaughton and Oltech cases as the leading cases in the jurisdiction which “when read together, provide a quite comprehensive account of the current...

Can a vehicle owner delivering asphalt to roadworks be exempt from prosecution for exceeding hours driven?

  A consultative case stated by Judge Patrick Durcan of Ennis District Court sought clarification from the High Court on whether exemptions that applied to vehicles involved in road maintenance and control applied in the instant case where the owner of the vehicle was prosecuted for allowing a driver of a haulage vehicle to exceed permitted hours of driving without a break.   Offences The accused was charged with two offences as follows:- (a) That you did on the 29th day of August, 2012 being the operator and owner of a motor vehicle registration number 07TN1545 and the employer of Alan Hayes, the driver of the said vehicle did cause or purport to authorise the said driver to contravene the provisions of Article 6(1) of Council Regulation (EC) No. 561/06 of the 15th of May, 2006 in that the day driving period was exceeded. Contrary to regulation 41(2)(b) of the European Communities (Road Transport) (Working Conditions and Road Safety) Regulations 2008 made under section 3 of the European Communities Act, 1972 as amended. (b) That you did on the 29th day of August, 2012 being the operator and owner of a motor vehicle registration number 07TN1545 and the employer of Alan Hayes, the driver of the said vehicle did cause or purport to authorise the said driver to fail to take an uninterrupted break of at least forty-five minutes after four and half hours driving in contravention of Article 7 of Council Regulation (EC) No. 561/06 of the 15th of May, 2006. Contrary to regulation 41(2)(b) of the European Communities (Road Transport) (Working Conditions and Road Safety) Regulations 2008...

High Court Personal Injury cases in Cork, Limerick and Sligo can be heard in Dublin

General Notices: 23rd March 2016 P.I. Direction Practitioners note the recent direction of the President of the High Court that allows personal injury assessment cases that would normally be heard in Cork, Limerick and Sligo to be transferred to Dublin, if both parties consent.  See wording below. Direction 1. I, Peter Kelly, President of the High Court pursuant to the provisions of Order 36, rule 2(c) of the Rules of the Superior Courts (Trial) 2012 (S.I. No. 355 of 2012), hereby direct that the trials of personal injuries cases consisting only of assessments of damages which would, but for this direction, take place at Cork, Limerick and Sligo, shall take place at Dublin, provided that all parties to such cases consent. 2. This direction applies to assessments of damages which have already been set down for trial and those which have yet to be set down. 3. Those cases which have yet to be set down shall continue to be set down for a venue in accordance with Order 36, rule 2(b) of the Rules of the Superior Courts. 4. Applications to transfer appropriate cases to Dublin and for the allocation of a hearing date may be made each Monday in term in the Master’s Court before the Deputy Master at 10.30 a.m. Dated the 23rd day of March, 2016 Peter Kelly, President of the High Court...

Plaintiff who knew that defendant was uninsured fails to recover from MIBI

In Doyle v Lyons and MIBI [2011/2522P] the plaintiff who was injured whilst a passenger in an uninsured car failed to convince the High Court that he did not know that the vehicle was uninsured. The MIBI called evidence from a Garda officer that the first defendant who drove the uninsured vehicle had recently been disqualified from driving for 25 years. The officer gave evidence, that at the sentencing hearing the Plaintiff (Doyle) was present and in fact had jeered as the judge passed sentence. The High Court accepted the evidence of the Garda Officer and held the Plaintiff had in fact known that the first Defendant was uninsured.   Defence Argument The defence of the second defendant put the plaintiff on full proof of all matters, denying negligence and alleged contributory negligence on the part of the plaintiff. In particular, it claimed that it was not liable for the injuries suffered by the plaintiff on the following ground:-   “Strictly without prejudice to the foregoing, the second defendant relies upon clause 5.2 of the agreement dated the 31st March, 2004 between the second named defendant and the Minister for Transport and pleads that it bears no liability to the plaintiff in circumstances where, at the time of the accident, he knew or ought to have known that there was in force an approved policy of insurance in respect of the use of the vehicle in which he was travelling then being driven by the first defendant.”   It was accepted by the MIBI that following the decision of the Court of Justice in Commission of the European Communities...

Damages reduced in the Court of Appeal

In the matter of Rita Shannon, Plaintiff/Respondent and Debbie O’Sullivan, Defendant/Applicant [2015 No. 166] The number of personal injury awards by the High Court being substantially reduced by the Court of Appeal is gathering pace. Judgment in the above case comes after several other cases where awards were reduced on appeal. Most recently in Nolan v Wirenski, the Court of Appeal reduced a total award of €125,650 in a personal injuries action to €65,000.  See here. In her judgement delivered on March 18 2016, Ms Justice Mary Irvine of the Court of Appeal halved damages awarded to Rita Shannon and Anthony Shannon by Justice Donnelly on the of  25th March 2015 at the High Court, Kilkenny. Justice Donnelly assessment of general damages in respect of Mrs Shannon had been one of €130,000. Justice Donnelly assessed general damages in respect of Mr Shannon at €90,000 in total. However Ms Justice Mary Irvine on Appeal expressed how she was “in the unenviable position of having to take issue with the conclusions of the learned High Court judge”. The Defendant maintained that each of the awards were excessive to the point that they should be set aside. The Plaintiff’s injuries were sustained in a road traffic accident on 7th November 2012. A robust challenge to the validity and extent of the injuries sustained by both Plaintiffs was maintained by the Defence. Inter alia submissions were made that the Plaintiffs were examined several weeks post-accident, not by their long established G.P. but rather by a retired G.P. The Plaintiffs had not missed any time from work. Furthermore it was submitted that the Plaintiffs...

Employer does not owe an employee an unlimited duty to prevent injury.

The duty an employer owes to an employee in order to protect that employee from injury does not amount to an unlimited one. The Irish Court of Appeal discussed this issue in the recent case of Martin v Dunnes Stores. In the case a checkout operator who had left her till to replace a 10kg bag of potatoes, injured her bicep lifting the bag. In the High Court Mr Justice O’Neill found that the defendant employer was liable and the plaintiff was awarded damages. The defendant company appealed. The defendant contended that the plaintiff chose not to seek assistance from her colleagues and that she had received sufficient training that she chose to ignore. The Judge in the High Court accepted that the plaintiff had  been well trained in the theory of manual handling and lifting and that the courses provided for her by the defendant were “adequate”, he nonetheless went on to conclude that they were “very inadequate” in that they did had not address the practicalities of what employees might be expected to lift. He instanced a number of products such as bags of dog food, compost and potatoes and found the defendant negligent in its failure to incorporate within its training programme the practicalities of lifting such products. The Court of Appeal upheld the defendants appeal. The Court referred to the decision in  Bradley v. C.I.E. [1976] I.R. 217 at 223, where Henchy J. stated as follows:-“The law does not require an employer to ensure in all circumstances the safety of his workmen. He will have discharged his duty of care if he does what a reasonable and...

High Court dismisses bus lane drivers claim.

In Byrne v Rahman a plaintiff who suffered injury in a road traffic collision where the defendant had pulled out of an exit into her path, had her case dismissed by the High Court. Mr Justice Barr held that the Defendant was not to be criticized for wrongly assuming that the plaintiff was turning left, where in fact the plaintiff had intended to unlawfully re-join a bus lane. Read the judgement here .  ...

Damages can only be fair and just if they are proportionate

Earlier we highlighted the Court of Appeal’s first decision in a personal injury assessment of damages case. You can read the piece here. In that case the court reduced the award of Cross J. The decision was a welcome relief for insurers who may have been concerned at a perceived rise in damages in personal injury actions driven by some High Court Judges. Insurers will welcome the decision of the same court in Nolan v Wirenski to reduce a general damages award of €120,000 made by Mr Justice Barr for the plaintiff’s shoulder injury. The award by the trial judge was for €90,000 damages for pain and suffering to the date of trial and €30,000 for pain and suffering in future. The Court of Appeal consisting of Judges Ryan, Irvine and Peart reduced the award for general damages to €65,000 consisting of €50,000 for pain and suffering to date of trial and €15,000 for pain and suffering in the future. In delivering the judgement Irvine J said “Principle and authority require that awards of damages should be (i) fair to the plaintiff and the defendant; (ii) objectively reasonable in light of the common good and social conditions in the State; and (iii) proportionate within the scheme of awards for personal injuries generally. This usually means locating the seriousness of the case at an appropriate point somewhere on a scale which includes everything from the most minor to the most serious injuries“. Referring to the limits of awards in personal Injury cases the Judge said “It can however generally be said that insofar as cases which involve catastrophic or life changing...

Modest injuries should attract moderate damages

The Court of Appeal set out the approach to be taken in assessing damages and referred to the perceived cap on general damages for the most serious injuries at €400,000. The Court had to consider whether the award in the instant case of €65000 general damages where the Plaintiff suffered from neck and back pain from which she had almost fully recovered was fair and reasonable?

Negligence and the Emergency Driver

    “Even drivers of emergency vehicles, who may be exempted from ordinary speed limits, are not exempted in terms of liability for negligence. They are not given carte blanche to drive without due care. However, in determining whether due care was taken, the court is entitled to give the object of the journey due weight. If this category of defendant is to be held potentially accountable in the law of tort, it would make no sense to conclude that gardaí when performing public order duties could be deemed to be under any less of an obligation in terms of the duty of care which they owe to members of the public”.   Irvine J in Fagan v Garda Commissioner & others [2014] IEHC 128   This is an obiter view given in the action where the innocent Plaintiff was knocked to the ground by riot police in a public order situation. The matter did not concern a road traffic accident. It did restate the position that Garda officers do owe a duty of care to other road users when driving, even in an emergency.   In Fagan the Defendants argued inter alia that the defendants did not owe a duty of care to the plaintiff as to the manner in which they exercised their public order function.   In support of the assertion the defendants relied inter alia upon the decision of The House of Lords in Hill v Chief Constable of West Yorkshire Police [1989] 1 AC 53, the decision of Kearns P. in Lockwood v Ireland [2011] 1. I.R. 374 and that of Hedigan J. in...

Excess Isurer v Primary Insurer

Its a supreme Court of Missouri case, so the usual disclaimer applies. The case of Scottsdale Ins Co. v Addison Ins Co et al is an interesting Insurance case. The matter arose out of a very tragic road traffic accident resulting in the death of a driver, whose family sued for damages. The Primary Insurer insured to a $1,000,000 limit. The excess insurer insured to a $2,000,000 limit. A demand was made by the deceased’s family to settle the cast for $1,000,000. The primary insurer refused. It was a costly refusal. The Primary insurer later settled the case for $2,000,000. The excess insurer (Scottsdale) issued proceedings on the principle of equitable subrogation as a basis for an excess insurer to recover from a primary insurer’s wrongful refusal to settle a claim. The Supreme Court of Missouri upheld the Court of Appeals decision to reverse the trial Judge’s judgement in favour of the Primary Insurer, recognising that the excess insurer could recover in equitable subrogation for the failure of the Primary Insurer. Here is a report on the case...

Northern Ireland High Court finds drunk pedestrian 60% liable for injuries

Negligence is a man’s carelessness in breach of duty to others. Contributory negligence is a man’s carelessness in looking after his own safety. He is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable prudent man, he might be hurt himself


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